FRANCES E. GOFF, AS GUARDIAN OF JAMES E. GOFF, INCOMPETENT, APPELLANT,
v.
392208 ONTARIO LTD. AND 97897 CANADA, LTD., D/B/A ATLANTIS ON BRICKELL ASSOCIATES, AND COHEN-AGER, INC., APPELLEES
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Plaintiff Frances Goff, guardian of an incompetent plaintiff injured in a construction accident, appeals a jury verdict awarding $410,000 in damages, arguing the award is grossly inadequate given the severity of injuries. The court reverses and remands for a new trial on damages, finding the award was against the manifest weight of evidence and that improper defense counsel comments prejudiced the jury.
The court held that the $410,000 damages award was plainly against the manifest weight of evidence given the permanent brain damage, documented past medical expenses, anticipated future expenses, and loss of earnings, requiring a new trial on damages. The court also held that the trial court reversibly erred in overruling the plaintiff's objection to the improper comment about VA hospital costs, which was prejudicial and likely influenced the inadequate damages award.
[1] A jury award of damages is grossly inadequate and against the manifest weight of the evidence when it fails to account for permanent brain damage, past and future medical…
[2] A new trial on damages is required when the jury's award is grossly inadequate given the evidence presented.
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Join FLexlaw to unlock all legal intelligence“Given the permanent brain damage suffered by the plaintiff in this case, the $122,828.46 of past medical expenses incurred, the probable medical expenses for the future, the loss of past and future earnings, and pain and suffering endured from the injury sustained, the amount of damages awarded is plainly against the manifest weight of the evidence.”
Establishes the court's standard for finding damages grossly inadequate and reversible error.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff suffered permanent brain damage in a construction-site accident. Past medical expenses totaled $122,828.46, with likely future medical e…
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PER CURIAM.
This is an appeal by the plaintiff from a final judgment entered in his favor based on a jury verdict which he contends awards him inadequate damages in a negligence action arising from a serious construction-site accident. We reverse, in part, the final judgment under review and remand the cause for a new trial on damages based on the following briefly stated legal analysis.
First, the trial court erroneously denied the plaintiff’s motion for new trial on damages because the $410,000 in damages awarded by the jury was grossly inadequate. Given the permanent brain damage suffered by the plaintiff in this case, the $122,828.46 of past medical expenses incurred, the probable medical expenses for the future, the loss of past and future earnings, and pain and suffering endured from the injury sustained, the amount of damages awarded is plainly against the manifest weight of the evidence. A new trial on damages is therefore required. See Griffis v. Hill, 230 So. 2d 143, 145 (Fla. 1969); Radiant Oil Co. v. Herring, 146 Fla. 154, 157, 200 So. 376, 378 (1941); Pickel v. Rosen, 214 So. 2d 730, 731 (Fla. 3d DCA 1968).
Second, the trial court committed reversible error when it erroneously overruled the plaintiffs objection to defense counsel’s concededly improper comment to the jury, which was not based on any evidence before the court, that a VA hospital room “doesn’t cost him anything,” referring to the plaintiff who was a military veteran. See Sosa v. Knight-Ridder Newspapers, Inc., 435 So. 2d 821, 826 (Fla. 1983); Mein, Joest & Hayes, M.D., P.A. v. Weiss, 516 So. 2d 299, 300 (Fla. 1st DCA 1987); Rommell v. Firestone Tire & Rubber Co., 394 So. 2d 572, 574 (Fla. 5th DCA 1981).
Contrary to the defendants’ central argument in their brief, this point was properly preserved for appeal when the above-stated objection was overruled by the trial court; there was no necessity for the plaintiff to make a subsequent motion for mistrial, as such a motion would have been entirely futile in view of the trial court’s prior ruling that the offending comment was proper. Simmons v. Baptist Hosp. of Miami, Inc., 454 So. 2d 681, 682 (Fla. 3d DCA 1984); Simpson v. State, 418 So. 2d 984, 986 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983).
Beyond that, we reject the defendants’ further argument that the plaintiff waived this point for appellate review by refusing the trial court’s invitation to present evidence refuting defense counsel’s improper comment and to present an argument thereon to the jury; the plaintiff was under no obligation to “cure” the trial court’s error here.
Finally, the above-stated comment was highly prejudicial to the plaintiff and may very well have influenced the jury to return the inadequate amount of damages awarded herein, as the jury could have believed that the plaintiff’s future medical expenses would be extremely limited in view of the free hospitalization he was allegedly entitled to receive as a military veteran.
The final judgment under review is affirmed insofar as it enters judgment for the plaintiff, but is reversed as to the amount of damages awarded, and the cause is remanded to the trial court for a new trial on damages.
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Kiwanis Club OF Little Havana, Inc. v. de Kalafe, 723 So. 2d 838 (Fla. 3d DCA 1998)…ruction during the charge conference. It is unnecessary to address this issue because any further objection by Kiwanis, in the face of the court's multiple prior instructions and rulings, would have been of no avail. See Goff v. 392208 Ontario Ltd., 539 So. 2d 1158 (Fla. 3d DCA 1989). . De Kalafe asserted five counts in her third amended complaint against Kiwanis and various Kiwanis members. Count I asserted tortious interference against Kiwanis. Count II asserted defamation against Kiwanis, Emilio Cabrera an…
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Newton v. S. Fla. Baptist Hosp. & Paul K. Perry, M.D., 614 So. 2d 1195 (Fla. 2d DCA 1993)…e is no basis for the court to grant a mistrial, even if a party were to request one. When an objection is overruled, it is preserved for appeal without the necessity of moving for a mistrial. Simpson, 418 So. 2d at 986; Goff v. 392208 Ontario Ltd., 539 So. 2d 1158 (Fla. 3d DCA1989). Newton argues that the trial court overruled his objection. The Hospital and Dr. Perry take the position that the objection was sustained and that the court’s remarks were a curative instruction. As these conflicting positions de…
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Diaz v. Xtra Super Food Ctrs., Inc., 579 So. 2d 893 (Fla. 3d DCA 1991)…d. See Griffis v. Hill, 230 So. 2d 143 (Fla.1969); Dorvil v. Purolator Courier Corp., 578 So. 2d 294 (Fla. 3d DCA 1991); Powers v. Johnson, 562 So. 2d 367 (Fla. 2d DCA 1990), review dismissed, 570 So. 2d 1304 (Fla.1990); Goff v. 392208 Ontario Ltd., 539 So. 2d 1158 (Fla. 3d DCA 1989). On that basis, the cause is remanded for a new trial on damages only. Reversed and remanded. . The jury also found the plaintiff guilty of 60% comparative negligence. No issue is made on appeal of the 60%-40% split in the li…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Griffis v. Hill, 230 So. 2d 143 (Fla. 1969)
- Radiant Oil Co. v. Herring, 146 Fla. 154 (Fla. 1941)
- Simpson v. State, 418 So. 2d 984 (Fla. 1982)
- Pickel v. Rosen, 214 So. 2d 730 (Fla. 3d DCA 1968)
- Fort Pierce Utils. Auth. v. Fed. Energy Regulatory Comm'n, 459 U.S. 1156 (U.S. 1983)
- Chaparro-Almeida v. United States, 459 U.S. 1156 (U.S. 1983)
- State v. Cabe, 435 So. 2d 821 (Fla. 1983)
- Sosa v. Knight-Ridder Newspapers, Inc., 435 So. 2d 821 (Fla. 1983)
- Simmons v. Baptist Hosp. OF Miami, Inc., 454 So. 2d 681 (Fla. 3d DCA 1984)
- Rommell v. Firestone Tire & Rubber Co., 394 So. 2d 572 (Fla. 5th DCA 1981)